Supreme Court to hear challenge to greenhouse gas controls

WASHINGTON – The Supreme Court will hear arguments Monday in a challenge to the Environmental Protection Agency’s power to regulate greenhouse gas emissions from stationary sources such as power plants and manufacturing facilities — a power that Indiana has fought since the rules were set in 2010.

The EPA says heat-trapping gases, which are linked to global climate change, may be a greater threat to public health and welfare than other pollutants it regulates.

But Indiana and other states challenging the rules accuse the EPA of “one of the most brazen power grabs ever attempted by an administrative agency,” according to court filings.

Industry groups also have been leading the charge, and the Indiana Chamber of Commerce joined with 74 other state and local business groups across the country in arguing that the regulations will have severe economic consequences. The associations say most of their members will face higher energy costs, and businesses will be reluctant to expand to avoid triggering the requirements.

“Smart, necessary regulation by the EPA makes sense, but once again the EPA — under President Obama’s tenure — has stretched the boundary of its ­authority,” Indiana Chamber President and CEO Kevin Brinegar said when the groups filed a brief in December asking the Supreme Court to stop the regulations.

The Indiana Cast Metals Association was among the groups that brought various challenges to the regulations, which the Supreme Court has narrowed to one question it will consider. That’s whether the EPA’s regulation of greenhouse gas emissions from new motor vehicles correctly triggered the agency’s setting emissions rules for stationary sources.

Those rules added greenhouse gases to the pollutants that must be controlled through pre-construction permits required when large emitters build new facilities or expand. The permits, which also cover other pollutants such as lead and ozone-causing compounds, require that the facilities use the best technology to minimize pollution.

The Supreme Court ruled in 2007 that heat-trapping gases can be considered a pollutant under the Clean Air Act. That gave the EPA authority to regulate carbon dioxide emissions from vehicles if the EPA determined, as it later did, that greenhouse gases posed a threat to human health and the environment.

After comprehensive climate change legislation died in Congress in 2010, the EPA set new fuel-efficiency standards on new cars and light trucks. The agency also established permitting rules for stationary sources.

The EPA limited the rules to the largest emitters, rather than applying them to every facility that exceeded the levels of pollution that the Clean Air Act specifies as the threshold for requiring pre-construction permits. Otherwise, the EPA said, the permitting requirements would have affected millions of industrial, residential and commercial sources while producing little additional benefit.

Opponents charge that because the EPA found it unworkable to apply the Clean Air Act as written, the act should not be used to regulate greenhouse gases.

“EPA is correct to acknowledge the absurdity of applying the (Clean Air) Act’s ... permitting requirements to carbon dioxide and other greenhouse gases, but the absurdity is caused entirely by EPA’s questionable conclusion that greenhouse gases qualify as air pollutants subject to regulation,” Texas’ attorney general wrote in the brief joined by Indiana Attorney General Greg Zoeller and officials from 11 other states.

Fifteen states, led by New York, argue that it has not been difficult for states to incorporate greenhouse gases in the pollutants regulated when issuing pre-construction permits. For example, some controls ­required for other pollutants also reduce greenhouse gas emissions. In other cases, facilities can meet the requirements by becoming more energy efficient, the states wrote in their brief asking the court to uphold the regulations.

The rules being challenged are different from new greenhouse gas rules the EPA is about to roll out for existing power plants. Those are being written under a different part of the Clean Air Act that is not being reviewed by the Supreme Court.